44 Wash. 536 | Wash. | 1906
The amended complaint in this cause alleges in substance as follows: That the plaintiffs are husband and wife, and are the owners in fee of certain real estate; that they acquired the title to the premises in June, 1900, and were in the actual and lawful possession thereof on the 7th day of February, 1906, when they were wrongfully dispossessed in the manner hereinafter stated; that they occupied the premises as their homestead for about six years, and that they expended large sums of money in improving the same; that they are well advanced in life, each being of the age of seventy-four years; that the premises are of the value of $2,500, due largely to the labor performed and money expended by them thereon; that the defendant Laura S. Crockett was the wife of a deceased son of the plaintiffs, and that she, subsequently to the death of their son, intermarried with the defendant Hugh B. Crockett, whose wife she now is; that the relations existing between the plaintiffs and said Crocketts were friendly, intimate and confidential, such as ordinarily exist between members of the same family; that while plaintiffs were engaged in improving their said homestead, they were compelled to expend sums of money for lumber and other material used in making such improvement, and that the said Hugh B. Crockett from time to time advanced to them sums of money, not exceeding in all $470; that on or about the 6th day of May, 1901, they became indebted to him in the above sum, and were negotiating for a loan upon the premises for the purpose of paying said debt; that the said Crocketts advised them not to mortgage their property, urging that the mortgage might be foreclosed and they might lose their homestead; that they advised the plaintiffs that the
It is assigned that the court erred in sustaining the demurrer. The demurrer stated three grounds; (1) that the complaint does not state sufficient facts to constitute a cause of action; (2) that several causes of action are improperly united; and (3) that it appears upon the face of the complaint that the action is barred by the statute of limitations.
The record does not disclose upon what ground the demurrer was sustained, but respondents argue two of the stated grounds of demurrer, viz., that the complaint does not state a cause of action, and that several causes of action are improperly united. With reference to the latter point we find that the pith of the complaint is that the relations of mortgagor and mortgagee exist between appellants and respondents ; that respondents as mortgagees have wrongfully conveyed and attempted to incumber the mortgagors’ property, and have wrongfully obtained possession thereof. Appellants simply seek by the action to be restored to their rights as mortgagors, and we think there is in effect but one cause of action stated. The demurrer is therefore not well taken on the ground that several causes of action are improperly united.
Does the complaint state facts sufficient to constitute a cause of action for the relief asked? S-espondents argue that the complaint avers no tender of the amount of the alleged indebtedness; that, under the allegations of the com
The complaint states sufficient facts to authorize relief to appellants, unless the facts averred with reference to respondents’ suit for possession preclude relief. Respondents argue that appellants are concluded by that judgment, since they did not appeal from it, notwithstanding their allegations that the judgment was obtained by fraud. It will be remembered, however, that appellant Sarah L. Gustin was not a party to that action; that the suit was against her husband only, and that the land was the community property of the two. Manifestly the rights of the wife were not determined in that action, and the rights of the community could not be determined without her presence. Respondents cite the case of
We think the court erred in sustaining the demurrer to the complaint, and the judgment is reversed and the cause remanded with instructions to vacate the judgment of dismissal and overrule the demurrer..
Fullerton, • Dunbar, Root, and Crow, JJ., concur.
Mount, C. J. and Rudkin, J., took no part.